نشریه فقه و مبانی حقوق اسلامی
سال پنجاه و دوم شماره 1 (بهار و تابستان 1398)

Accepting the sexual instinct, to respond to it, and with its full knowledge of all that benefits or corrupts the world, Islam has offered a comprehensive and wise system in harmony with the system of family law and the ruling system. The use of the word Bud‘ in jurisprudential texts, the existence of differing views in explaining its nature, the claim of women over the Bud‘ and the related effects of such ownership on the one hand, and the similarity of this view with the claim of women's sexual ownership over the Bud‘ on the other foster such doubtful issues as the possibility in Islam of having sex with women as a deal. In this research, the nature of the Bud‘ and the discovery of the ruling system of sexual interests in women in Imamiah jurisprudence has been studied by a descriptive-analytical method and documented. The findings of the study identify the nature of Bud‘ in all aspects of sexual interest and while explaining the kind of relationship between a woman and Bud‘ deals with cases where the exploitation of women's interests is prohibited as well as the exclusive right of women to delegate sexual interests being subject to proper marriage.

In this research, it is attempted to answer this question with a descriptive -analytical method that according to the rule of innocence in Islamic jurisprudence, on what principles of jurisprudence is the view that money laundering is one of the examples of guilty circumstances based? To answer this question, the reasons for jurisprudential principles such as the generalization of the sentence, the priority of the sentence on the principle, and the foundation of the religion are studied, based on the most widely used jurisprudential case of the guilty circumstances, which is compurgation. It is possible to accept that money laundering exemplifies guilty circumstances.

Mahr (dowry) or sadaq is regarded as one of the results of permanent marriage, as a financial right which is paid for spiritual purposes, including glorification of the wife, kindness, and chastity, and as soon as the amount of dowry is determined and the marriage officiated, the husband is obliged to pay it. There is consensus among jurists that the wife becomes entitled to the whole dowry after permanent marriage, but they have different opinions about the conditions that validate a full dowry; all of them agree that one of the conditions is sexual intercourse; therefore, if divorce takes place before any intercourse is performed, half of the dowry is given back to the husband. Disagreement comes in the case of the death of one of the spouses before intercourse; the well-known opinion appends the death to intercourse and assigns full dowry, but the opinion of most famous Shiite jurists appends the death before intercourse to divorce and assigns half dowry; Iran’s civil law refers to the well-known opinion in this issue. By considering and investigating the foundations and reasons of both opinions, this article seriously criticizes the opinion of full dowry and recognizes the opinion of half dowry to have solid proofs. This article could be a useful solution in order to modify the civil law and decrease the debtors of dowry especially in the case of the death of one of the spouses as an uncalled-for circumstance.

One aspect of "praying in an unclean cloth or body" is that a person prays in an unclean (cloth or body) forgetfully and remember after completion. In this case, there are three theories and the main cause of the difference is the contradictions of hadiths. In this research, we have pointed out solutions stated for resolving this contradiction in the library method and in a descriptive-analytical way, in a problem-oriented style, and have dealt with studying and criticizing them. The removal of contradictions is in a way that if the forgetful person is responsible in forgetting and has been negligent, his prayer is void, but if his forgetfulness appeared with his fullest observation and attempt, his prayer is accepted and there is no need to repeat it; the reason for this result is that: firstly, Imam Sadiq (P.B.U.H.), in the Sama'a hadith has said that the restitution of prayer is caused as a punishment and it is meaningful when forgetfulness is due to irresponsibility; secondly, the word "then you wasted" in the valid narration of Muhammad Ibn Muslim points to the lack of effort of the person; it is clear that in case of his full attention the word "waste" is meaningless.

This research has criticized and reviewed, in an analytical-descriptive method, the principles of different opinions of the marriage and divorce of a minor by the Jurist from the viewpoints of the Imamiyyah and Sunnites in the following two sections: a. The opinions of the scholars of Shia and Sunni regarding the authority of the jurist in the marriage of minors which is summed up in three opinions; b. The opinions of the Imamiyyah and Sunnites regarding the authority of the jurist in the divorce of minors, according to which there is no such authority, unless the minor is insane during puberty. And in the Sunnite opinion the father and the natural guardian have no right to divorce, and due to the priority, the jurist’s lack of authority is inferred. Research the jurist has authority in the minor’s marriage in case the minor does not have a father, a great grandfather, and no executor of either, in which case, in case of occasion and necessity, he has authority in marrying, but he does not have authority in divorce; this opinion has been proven by virtue of many proofs.

As a new theory in criminal justice, restorative justice pursues the goals of compensating the damages inflicted on the victims, restoring the relationship between the offenders and victims, correction and rehabilitation of offenders, and securing the interests of the local communities affected by crimes. The essence of the mentioned process on the one hand and the intrinsic necessities of family environments on the other altogether make it essential to cover family relationships with restorative justice instead of penal justice. In addition, Islam too has based its precepts on restoration and correction of family relationships. In fact, advising to form familial courts, and to establish peace, kindness, and forgiveness point to the consistence between the mentioned lessons and the indices of restorative justice. And the important point is that the main sources of jurisprudential documents used to prove the credibility of the process of restorative justice in general relate to the relationships within the family, which highlights the necessity of using it within the family. The outcome of adoption of such a perspective can help remove familial issues from the domain of criminal justice, while also convincing the legislators to replace punishment with peace-based and civil solutions in the face of familial anomalies.

Islam is very strict and rigorous to adjudication and very careful about verdicts and therefore tries to prevent injustice in judgment and encourages the Judicial System to further inquire to clarify the truth and bring the system to realism and prevent negligence. For this reason, Islam does not accept judgments based on speculation. Hence, the legal system must scrutinize and consider carefully; in addition, it must mobilize all its efforts and facilities to reach the truth to have a just and correct judgment and take care that nothing (intentionally or unintentionally) invalidates the verdict. The diagnostic board and the judicial board must also comply with this order; therefore, for the issuance of a vote, all members must reach a single opinion in a joint meeting or meetings and announce it to be the final opinion, and they must refrain from approving the opinion of one or two members without investigation and negotiation. The judiciary which is collectively generic should announce the opinion of the unit in conjunction with and after the necessary examination, rather than endorsing and signing the opinion of one of the members without a joint plan and sufficient research and knowledge.

When the law falls behind the evolution of society, the judicial system acts as a supplement to fill the gaps somehow. In a society where inflation is under control, and price changes and market fluctuations are so insignificant that they are not noticed by the common man, decision to restore the only contract price where the subject matter is belonging to another person is rational and defensible. But in a society where the economy is chronically ill and the price sharply fluctuates, such a decision is cruel and unjust. Some judges based their judgements on the generalization of the concept of "gharamat" (compensations) and decided according to inflation rate to compensate the rightful owner by obligating the unauthorized salesman to pay the money, and another group of judges based their decision on price date of subject matter according to expert opinion. In this article we show that the unified judicial precedent has ratified only the latter view which is accordant with justice, equity, deceptive and no harm rules.

The process of compulsory treatment of addicts as the duty of others - whether from supportive institutions or others - is based on the principle of diligence in deciding how to dominate human beings. This article, written in a descriptive-analytic method, analyzes that, given the fiduciary relationship of man to his own self, the refusal of an addict to be treated is ineffective; Therefore, in order to explain the duty of the person other than the addict, for the purpose of compulsory treatment, the legitimacy of the aid, according to the use of the verses, hadiths, and reasoning on the clarity of the influence and suggestibility of all the people of society and the belief of the addicted person as a member of Community can be cited.  The Wise Method affirms the endeavor to help others in the time of danger and the necessity of being well-mannered in accordance with the rule of ihsan (beneficence), the legitimacy of this compulsion. Based on the clarification of permissible human permits, it can be said that the reasons that justify the legitimacy of forcing addicts to compulsory treatment are to be prioritized by limiting the subject of the rule of the “Taslit” to it.

An economic analysis of rights is an attractive and challenging attempt to apply the concepts and methods of reasoning in modern economics based on economic reason or instrumental reason in order to obtain a deeper and more rational understanding of legal problems.What is evident in this approach to the school is the importance of goals and objectives in the practical wisdom (the do's and don'ts) and the role of reason as the designer of the means of providing purposes that extends the human vision, saves it from rigidity, and always directs mankind to design better tools. The explanation of such a position for human reason in the jurisprudence philosophy needs to be investigated. What is being studied by the schools of jurisprudence and Islamic law is that in the Islamic jurisprudence the school of jurisprudence and the viewpoint of Allamah Tabatabai (RA) follow such an approach, and it is the human intellect that has the means and plans to achieve the intended ends.

In the emerging treatment of sterility based on sex-cell donation or fetus donation, considering the fatwa of some contemporary jurists and the theories of some jurisprudence scholars, the assignment of the baby resulting from the donated sperm, ovum and embryo to its biological parents is conditioned to non-repayment of sexual cells or the donated embryo. It means that if the donator of sperm, ovum or even the embryo resulting from the external insemination has rejected the newly-born baby, it does not concern them and requires consideration of the effects of the relation functions such as inheritance, custody, and alimony. In this research by analyzing this theory with the nature of the symptoms of sexual cells and embryos as well as analyzing the concept and nature of the relation, it has been proven that disconnection of evidence is not possible based on hardship even if other consequences such as loss of the right of priority in usage, disclaim of the conqueror, certificate of destruction of frozen packs, or similar cases are impossible.

In many criminal proceedings the honor of people is at risk. Since honor has a lot of personal and social effects, and Shariah endeavors to preserve the honor of individuals, and according to other arguments and rules in jurisprudence, such as: the la zarar principle, the principle of the individuality of criminal liability, etc. and since the reasons for the lack of influence of honor, such as the effort of religious law in the rights of others (haq ul-naas), justice in the proceedings, consensus, etc. are not sufficient, it is proven that if the common procedure related to human right leads to a harm coming to the honor of an individual or individuals, despite the effort of religious law to the rights of others, the judge is required to conduct the procedure within a framework that prevents harming the honor. If it is not possible to prevent this harm, due to the interference with the necessity of proceedings and the necessity of maintaining honor, it is necessary to act in accordance with the rule of interference.